On May 30, 2018 a
Order
was filed
involving a dispute between
Christopher Fleming,
and
Camilo Fernandez,
for Torts - Other Negligence (205-e)
in the District Court of New York County.
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INDEX NO. 155018/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8
CHRISTOPHER FLEMING INDEX NO. 155018/2018
MOT. DATE
-v-
MOT. SEQ. NO. 001
CAMILO FERNANDEZ
The following papers were read on this motion to/for DEFAULT JUDGMENT
Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits NYSCEF DOC No(s).
Notice of Cross-Motion/Answering Affidavits — Exhibits NYSCEF DOC No(s).
Replying Affidavits NYSCEF DOC No(s).
In this action, plaintiff, a police officer, seeks to recover for personal injuries he sustained when he
“lost his footing on a makeshift wooden staircase without handrails” during the execution of a search
warrant at 4099 Broadway, New York, New York (the “premises”). The motion has been submitted with-
out opposition despite proof of service. For the reasons that follow, the motion is denied.
Plaintiff has provided an affidavit of service indicating that defendant was served by substitute ser-
vice upon Josefina Fernandez, a person of suitable age and discretion at 629 West 173° Street, Apt
8G, New York, New York. Ms. Fernandez is alleged to be a family member. Plaintiff has not explained
how he came to learn that the defendant resides at the address where service was effectuated. There-
fore, plaintiff has not established that the defendant defaulted in this action.
According to his attorney verified complaint, plaintiff is suing defendant on a theory that the “de-
fendant knowingly allowed illicit and criminal activity to occur’ at the premises. In support of the motion,
plaintiff has provided his sworn deposition testimony taken on March 9, 2018 in a case entitled Fleming
v. 173 Broadway Associates. Plaintiff has not, however, provided an index for the transcript and neither
him nor his attorney have specifically explained what facts support their theory of liability against the
plaintiff. Indeed, the court cannot discern a theory of liability. Therefore, the motion is denied without
prejudice to renew upon a proper showing demonstrating the defendant's default in this action as well
as establishing a prima facie cause of action against the defendant.
Accordingly, it is hereby ORDERED that the motion is denied without prejudice to renew within 90
days upon a proper showing.
Dated: 10 sols
HON. LYNN R. KOTLER, J.S.C.
1. Check one: fAcase DISPOSED (1 NON-FINAL DISPOSITION
2. Check as appropriate: Motion is Coranren(¥ DENIED 1) GRANTED IN PART (] OTHER
3. Check if appropriate: OSETTLE ORDER C1] SUBMIT ORDER CO DO NOT POST
COFIDUCIARY APPOINTMENT C] REFERENCE
Page 1 of 1
lof 1
Document Filed Date
November 02, 2018
Case Filing Date
May 30, 2018
Category
Torts - Other Negligence (205-e)
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INDEX NO. 155018/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/02/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8 CHRISTOPHER FLEMING INDEX NO. 155018/2018 MOT. DATE -v- MOT. SEQ. NO. 001 CAMILO FERNANDEZ The following papers were read on this motion to/for DEFAULT JUDGMENT Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits NYSCEF DOC No(s). Notice of Cross-Motion/Answering Affidavits — Exhibits NYSCEF DOC No(s). Replying Affidavits NYSCEF DOC No(s). In this action, plaintiff, a police officer, seeks to recover for personal injuries he sustained when he “lost his footing on a makeshift wooden staircase without handrails” during the execution of a search warrant at 4099 Broadway, New York, New York (the “premises”). The motion has been submitted with- out opposition despite proof of service. For the reasons that follow, the motion is denied. Plaintiff has provided an affidavit of service indicating that defendant was served by substitute ser- vice upon Josefina Fernandez, a person of suitable age and discretion at 629 West 173° Street, Apt 8G, New York, New York. Ms. Fernandez is alleged to be a family member. Plaintiff has not explained how he came to learn that the defendant resides at the address where service was effectuated. There- fore, plaintiff has not established that the defendant defaulted in this action. According to his attorney verified complaint, plaintiff is suing defendant on a theory that the “de- fendant knowingly allowed illicit and criminal activity to occur’ at the premises. In support of the motion, plaintiff has provided his sworn deposition testimony taken on March 9, 2018 in a case entitled Fleming v. 173 Broadway Associates. Plaintiff has not, however, provided an index for the transcript and neither him nor his attorney have specifically explained what facts support their theory of liability against the plaintiff. Indeed, the court cannot discern a theory of liability. Therefore, the motion is denied without prejudice to renew upon a proper showing demonstrating the defendant's default in this action as well as establishing a prima facie cause of action against the defendant. Accordingly, it is hereby ORDERED that the motion is denied without prejudice to renew within 90 days upon a proper showing. Dated: 10 sols HON. LYNN R. KOTLER, J.S.C. 1. Check one: fAcase DISPOSED (1 NON-FINAL DISPOSITION 2. Check as appropriate: Motion is Coranren(¥ DENIED 1) GRANTED IN PART (] OTHER 3. Check if appropriate: OSETTLE ORDER C1] SUBMIT ORDER CO DO NOT POST COFIDUCIARY APPOINTMENT C] REFERENCE Page 1 of 1 lof 1